W.S. Dickey Clay Mfg. Co. v. Snyder

• Decision Date: 08 July 1933
• Docket Number: 31262.
• Citation: 23 P.2d 592,138 Kan. 146
• Parties: W. S. DICKEY CLAY MFG. CO. et al. v. SNYDER et al.
• Court: Kansas Supreme Court

23 P.2d 592

138 Kan. 146

W. S. DICKEY CLAY MFG. CO. et al. v. SNYDER et al.

No. 31262.

Supreme Court of Kansas

July 8, 1933

Syllabus by the Court.

In action on sewer contractor's bond, amendment to petition setting up claim for materials furnished to same contractor and used on another job, where claim was barred by limitation, held error (Rev. St. 1923, 60-- 1413, 60--1414).

Where putting of plaster on flush tank by sewer contractor was part of original contract and necessary to complete job, time for bringing action on claim for materials furnished held to commence to run from completion of such additional work and not from time of inspection and acceptance of job by city (Rev. St. 1923, 60--1414).

In action on public contractor's bond, statute authorizing injunction against insurance company if judgment covering loss is not paid within three months after final judgment held not statute of limitations applicable to appeal from final judgment (Rev. St. 1923, 60--1413; Rev. St. Supp. 1931 40-- 219).

1. Where an action to enforce the liability on a contractor's bond for materials is filed and as to certain items named in the petition it appears at the time of trial that these items were for a different job and covered by a different bond and the statutory time within which to bring a suit on these items has passed, the original petition cannot be amended by adding another cause of action based on these items.

2. In an action on a bond given by a contractor to secure the payment of materialman's liens it appeared that certain work on a flush tank was a part of the original contract and was necessary to be done to complete the job and to comply with the provisions of the contract. Held that, in such a case, no matter how slight the amount of work, the statute limiting the time within which to bring the action did not commence to run till this work was done.

3. In an action on a bond given by a contractor to enforce the liability on a materialman's bond it is held that R. S 1931 Supp. 40--219 is not a statute of limitations on the time to appeal to the supreme court from a final judgment in district court.

Appeal from District Court, Saline County; Dallas Grover, Judge.

Action by the W. S. Dickey Clay Manufacturing Company, Clifford Histed and Fred L. Dickey, coreceivers of the W. S. Dickey Clay Manufacturing Company, against R. C. Snyder and another. From a judgment in favor of the plaintiffs, the defendants appeal.

Reversed in part with directions, and affirmed in part.

W. S Norris and Homer B. Jenkins, both of Salina, for appellants.

Frank P. Barker and Joseph T. Owens, both of Kansas City, Mo., and C. W. Burch, B. I. Litowich, La Rue Royce, L. E. Clevenger and E. S. Hampton, all of Salina, for appellees.

SMITH Justice.

This was an action by a materialman on a public contractor's bond. Judgment was for plaintiff. Defendant appeals.

The contractor entered into a contract December 13, 1930, to build certain sewers. This job was No. 59. The date of the contract was October 13, 1930. He gave the bond under R. S. 60--1413. He entered into a contract with plaintiff for certain materials. The materials were shipped and Snyder agreed to pay $2,100.22 for them. He paid $1,000 but did not pay the balance. This suit was started June 25, 1931, against the surety company to collect the balance. At the trial of the case evidence disclosed that Snyder had entered into another contract with the city under date of October 27, or about fifteen days later than the date of the contract above mentioned, for the construction of certain other sewers, which job was described as job No. 63. A bond was given under date of November 3, 1930, for the completion of this contract. The evidence also disclosed that two items, for which suit was brought on June 25, 1931, were not used on job No. 59, but were used on job No. 63. When this fact was disclosed by the evidence, it became apparent that plaintiff could not recover for those two items in a suit based on the bond given to secure the performance of job No. 59. On this account plaintiff asked and was given permission to amend its petition to set out the execution of the contract for job No. 63, the giving of the bond thereunder, and the default. The making of this amendment to the petition occurred more than six months after the completion of the contract. Defendant raised by proper motion and urges here that the third count, which set out the facts with reference to job No. 63, was a new cause of action and barred by the statute of limitations with reference to suits against bonding companies. The part of R. S. 60--1414, upon which defendant relies, is as follows: "Provided, That no action shall be brought on said bond after six months from the completion of said public improvements or public buildings."

Appellee urges that the evidence showed that the two contracts were for the same general purpose, that is, the building of sewers, and between the same parties, and that the making of this amendment was within the discretion of the court.

It will be seen that the amendment was an attempt to state a cause of action growing out of a different contract for a different job and on a different bond than that upon which the original suit was based. There was no liability whatever upon the defendant except that growing out of the bond. In order to enforce liability on this bond it was necessary that suit should be brought within six months of the completion of the job. This was not done with reference to job No. 63. No suit was filed on that bond until much more time than that had elapsed. Now if the suit on the bond that was given with reference to job No. 59 had not been filed no one would argue that the suit on the bond given with reference to job No. 63 had been filed in time. The question is then: Does the fact that there was an action pending between the parties in connection with the same sort of work but based on an altogether different contract bring an amendment within the time limit on account of its being filed to a petition which was filed in time? The latest discussion of this subject is in Burger v. First Nat. Bank, 124 Kan. 23, 257 P. 979. In that case the syllabus is as follows: "When the petition, in stating a cause of action, sets forth a contract and its violation, an amendment to the petition, which sets forth as a basis for the cause of action a new and different contract than that relied on in the original petition, should not ordinarily be permitted to be filed, and, if filed, it must be treated as though a new action was then filed on the cause of action therein stated." The opinion contains a discussion of other cases of this court.

In Union Pac. Railroad Co. v. Sweet, 78 Kan. 243, 96 P. 657, this court held in the syllabi as follows: "Amendments which only amplify or make more specific the averments of the original petition or which state the wrong suffered or right relied on are ordinarily permissible, and will relate back to the beginning of the action, but where the amendment sets forth it new and different cause of action, the statute of limitations continues to run until the amendment is filed." Syl. par. 1. And the application of the rule, as there stated, is as follows: "In an action to recover damages for the negligent setting out of a fire which destroyed the plaintiff's trees, the original petition alleged that the fire was negligently set out at a certain time and place, and after the period of limitation had expired the plaintiff obtained leave to amend his petition so as to aver that the damage resulted from another and different fire which was started five miles distant from the one relied on in the original petition, held, that the amendment set out a distinct and different tort and a new cause of action upon which a recovery was barred by the statute of limitations." Syl. par. 2. Other cases which have decided this question to the same effect are Taylor v. Swift & Co., 114 Kan. 431, 219 P. 516; and Beneke v. Bankers' Mortgage Co., 119 Kan. 105, 237 P. 932.

The third cause of action was an attempt to amend a petition that stated a cause of action as to certain items, to state a new cause of action as to these items under an entirely different contract and after limitations had run on the cause stated in the amendment. To permit this would be to nullify the statute of limitations. In line with the authorities quoted and cited we have concluded that this cannot be done.

The second cause of action was dismissed.

This leaves the first cause of action for our consideration. This count was based on the bond given to secure performance of job No. 59. The evidence disclosed that the city inspected the job and accepted it December 12, 1930. If this was...